Legal experts say it’s not at all clear whether Kagan or Thomas should remove themselves from the case based on what’s known thus far, but those on both sides of the ideological divide express concern that public faith in judges is undermined when partisans seek recusal to achieve political ends.

“What we have here are huge stakes in one of the biggest ideological battles in the country, and recusal is being used as just one arrow in the quiver, even though it doesn’t particularly fit,” says James Sample, a law professor at Hofstra University on Long Island, N.Y.